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I-9 E-Verify Immigration Compliance

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  1. Missing Deadline for Providing I-9s to ICE is Costly

    By Bruce Buchanan, Sebelist Buchanan Law PLLC

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    OCAHO’s recent decision in U.S. v. Alpine Staffing, Inc., 12 OCAHO no. 1303 (May 2017), demonstrates how untimely presentation of I-9 forms can be costly to an employer.

    Alpine Staffing is a small staffing company in Minnesota. It received a Notice of Inspection (NOI) on August 23, 2013 informing the company that it needed to present all of its I-9 forms for current employees and former employees for the past 2 years by August 29, 2013. On that date, Alpine Staffing delivered many I-9 forms to ICE. The following day Alpine Staffing discovered 271 additional I-9 forms. It immediately delivered the additional I-9 forms to ICE. On October 1, 2013, the company discovered another 39 Forms I-9 and thereafter delivered those to ICE.

    After a review of the I-9 forms, ICE issued a Notice of Intent to Fine (NIF) and then a Complaint which alleged in Court I – failure to timely present or prepare 345 Forms I-9 and Court II – company failed to ensure 132 employees properly completed Section 1 of the I-9 form and/or the company failed to properly complete sections 2 or 3 of the I-9 forms. ICE sought $367,000 in penalties.

    Alpine Staffing’s principal defense was it was unaware of a specific deadline for presentation of I-9 forms to ICE. However, this defense was belied by the fact that they presented numerous I-9 forms on August 29, 2013, the date that ICE stated the I-9 forms were due. Thus, OCAHO found all I-9 forms delivered after August 29, 2013 were untimely presented.

    OCAHO affirmed ICE’s assessment of $770 per I-9 form for the 34 instances of failure to prepare an I-9 form for those employees. However, OCAHO gave Alpine Staffing a break on the untimely presented I-9 forms. For those presented a day late, OCAHO set a penalty of $500 each, rather than $770. For those I-9 forms delivered at a later date, OCAHO set a penalty of $600 each, rather than $770. Overall, the penalty assessed for the failure to prepare or untimely present I-9 forms was set at $185,000. ICE had sought $256,000. Concerning the 130 Court II violations, OCHAO reduced the penalty from $770 to $700 per I-9 violation. Overall, OCAHO assessed penalties of $276,000. Thus, Alpine Staffing received a reduction of about 25% in penalties.

    This decision shows the importance of locating and providing all I-9 forms covered by the NOI by the deadline. The company’s error appears to be caused by the fact that their I-9 forms were not kept in one location. It is certainly best to keep all a company’s I-9 forms in one location at the company’s facility.

  2. Year in Review: 2016 OCAHO Decisions

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC

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    No employer wants to receive the dreaded “Notice of Intent to Fine” (NIF) in connection with an audit of their I-9 forms. Dealing with an I-9 inspection alone is a costly affair, but the NIF can be downright crippling – particularly for small businesses. Fortunately, employers can appeal an adverse I-9 decision by requesting a hearing with the Office of Chief Administrative Hearing Officer (OCAHO), an administrative court that reviews employer sanctions cases under §274A of the Immigration and Nationality Act.

    Although OCAHO decisions adjudicating I-9 penalties have leveled off in the past few years, it is anticipated there will be many more decisions in future years as the number of Form I-9 inspections is on the rise in the Trump administration and, as shown below, employers continue to obtain significant decreases of I-9 penalties at OCAHO.

    In calendar year 2016, OCAHO issued 16 substantive decisions against employers in I-9 penalty cases. For a few employers, there were two or more decisions concerning substantive issues before the court reached a decision on the amount of the I-9 penalties. The number of cases is a slight increase from 2015, when there were 13 decisions but still much lower than the 30 decisions issued in 2013.
    For remainder of article go to LawLogix website where full article is published - https://www.lawlogix.com/the-year-in...sions-in-2016/.
  3. OCAHO Says Employee Unprotected

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC

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    In Thompson v. Sanchez Auto Services, LLC
    , 12 OCAHO no. 1302 (May 2017), OCAHO dismissed a complaint filed by a former employee of Sanchez Auto.

    In their decision, the Office of Chief Administrative Hearing Officer (OCAHO) highlighted a couple of key points to remember in the application of whether an employer’s actions violate 8 U.S.C §1324b – the anti-discrimination provisions of the Immigration and Nationality Act (INA). First, the complainant must be a protected individual – meaning a U.S. citizen; a permanent resident, who is not eligible for naturalization or less than six months has occurred since becoming eligible for naturalization; an asylee; or a refugee. In this case, Mr. Thompson became a permanent resident on September 25, 1994 and alleged discrimination between June 2012 and January 2013. Thus, Mr. Thompson was not a protected individual because he had been a permanent resident for about 18 years.

    The second point to be gleaned from this decision is that the statute only covers specific adverse employment actions - hiring, recruitment or firing of employees, retaliation and document abuse. Mr. Thompson alleged the employer failed to pay him proper wages. This is clearly not covered by §1324b.

    Thus, for the above reasons as well as others (which will not be discussed in this article), OCAHO dismissed Mr. Thompson’s complaint.
  4. OCAHO Decides Who and What is Protected from Document Abuse

    By Bruce Buchanan, Sebelist Buchanan Law PLLC
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    The Office of Chief Administrative Hearing Officer (OCAHO) issued another decision on “document abuse”, which has been renamed “unfair documentary practices”, finding the employer did not commit document abuse against the Charging Party, Doris Rainwater. Rainwater v. Doctor’s Hospice of Georgia, Inc., 12 OCAHO no. 1300 (Apr. 2017).

    Facts

    Ms. Rainwater was employed as a certified nursing assistant at Doctor’s Hospice for several years. At that time, she was a lawful permanent resident (LPR). In November 2013, Doctor’s Hospice conducted an annual review of its employees’ personnel files to ensure none of its employee documentation, such as certifications, had expired. In this review, the Administrator discovered Ms. Rainwater’s LPR card had expired. Thereafter, Ms. Rainwater was informed she was suspended until she could present a valid LPR card.

    Ms. Rainwater contacted the Office of Special Counsel for Immigration-Related Unfair Employment Practice (OSC) (now renamed Immigrant and Employee Rights Section (IER) of the Department of Justice), who informed her that Doctor’s Hospice’s action was discriminatory. OSC called Doctor’s Hospice and explained even if a LPR card expires, the individual’s LPR status has not ended. During the suspension, Ms. Rainwater told her supervisor, Ms. Charleston, that she had called the Department of Justice. Ms. Charleston reiterated she could not work with an expired LPR card. (It’s unclear whether this conversation occurred before or after OSC’s call to Doctor’s Hospice). Doctor’s Hospice’s Director of Nursing said she received a phone call from the Department of Justice, who said LPR cards never expire. Several days later, Ms. Rainwater was reinstated, but without back pay for the two weeks off.

    When Ms. Rainwater returned to work, she said most of the managers did not speak to her. One manager, Ms. West, allegedly stated the facility had the “best lawyer” and “nobody beat or play with my lawyers.” She also allegedly said “you should have talked to me about his prior to going to the Department of Justice to complain about these things.”

    On January 8, during an ice storm, a pipe burst at this facility causing a shutdown and the layoff of all employees. On February 27, the facility reopened but it was not fully occupied with patients; thus, two employees were not rehired - Ms. Rainwater and one other employee. Doctor’s Hospice asserted Ms. Rainwater was one of the two employees not rehired because of her poor work record and performance. Thereafter, Ms. Rainwater filed a charge with OSC alleging her failure to be rehired was retaliation and the original suspension was also unlawful.

    Suspension Claim

    OCAHO found Ms. Rainwater’s suspension claim failed because the statute only “prohibits an employer from discriminating with respect to hiring, recruitment, referral or discharge.” The statute does not cover certain employment actions, such as suspension, compensation, or shift assignments.

    However, Doctor’s Hospice’s actions in requesting an unexpired LPR card from Ms. Rainwater was determined to be an act of document abuse under 8 U.S.C. §1324b(a)(6). However, Ms. Rainwater is not a protected individual under that section because she was not a recent permanent resident. Ms. Rainwater had been a LPR for almost 10 years. To be covered, individuals must have not held LPR status for no longer than six months beyond becoming eligible to naturalize. Ms. Rainwater became eligible to naturalize approximately five years before the request for an unexpired LPR card.

    Failure to be Rehired Claim

    Concerning the failure to rehire Ms. Rainwater to work when the facility reopened, OCAHO found Ms. Rainwater’s evidence did not support her retaliation claim. Initially, OCAHO noted that even though she was not considered a protected individual for the document abuse claim, OCAHO retained jurisdiction over her retaliation claim. Specifically, Ms. Rainwater engaged in protected conduct when she contacted OSC about her suspension due to an expired LPR card. Furthermore, Doctor’s Hospice knew of the contact through Ms. Rainwater telling Doctor’s Hospice and a telephone call from OSC explaining that LPR cards do not expire.

    OCAHO concluded Ms. Rainwater failed to establish a causal link between her protected conduct and the failure to be rehired. Although the time period between the telephone call to OSC and the termination was less than three months, OCAHO found intervening events – the ice storm, closure of the facility, and subsequent reopening of the facility with less than full capacity - broke the claim of causality in the retaliation claim. OCAHO said these events caused the end of Ms. Rainwater’s employment, not retaliation. Furthermore, the fact that Doctor’s Hospice returned Ms. Rainwater to work in December after the phone call to OSC undercut her assertion of a causal link between contacting OSC and her failure to be rehired. Finally, OCAHO found Doctor’s Hospice comments about Ms. Rainwater’s contact with OSC were not sufficient to establish the causal link. Thus, OCAHO dismissed Ms. Rainwater’s retaliation claim.

    This decision is a firm reminder of who is covered and what is covered by Section 1324b cases. Often, employers are so focused on complying with the I-9 requirements, they inadvertently commit citizenship status discrimination under Section 1324b. One idea to combat this problem is to have an immigration compliance attorney conduct a training session on immigration compliance.

  5. Employer’s Argument for Electronic Signature Fails

    By: Bruce Buchanan, Sebelist Buchanan Law

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    In U.S. v. Agri-Systems (ASI), 12 OCAHO no. 1301 (Apr. 2017), the Office of Chief Administrative Hearing Officer (OCAHO) found ASI’s argument, that typing in the company name in Section 2 of an I-9 form equaled an electronic signature, was “spirited but contrary to both law and evidence.” However, OCAHO agreed with ASI that a question of whether 23 Form I-9s were timely presented to Immigration and Customs Enforcement (ICE) is a factual dispute, which cannot be decided without a hearing where witnesses will testify concerning the delivery or non-delivery of those I-9 forms.

    This case started almost six years ago with the service of a Notice of Inspection (NOI) by ICE. Thereafter, ASI delivered 159 Form I-9s to ICE. Two years later, ICE served a Notice of Suspect Documents (NSD), Notice of Discrepancies, and Notice of Technical Errors on ASI. As a result, ASI terminated the 46 employees on the NSD and 22 of the 28 employees on the Notice of Discrepancies plus it provided new I-9 forms on the other six employees listed in the Notice of Discrepancies.

    Two and one-half years later, ICE issued a Notice of Intent to Fine (NIF) alleging in Count I – ASI failed to present 23 Form I-9s and failed to prepare five Form I-9s – and Count II – 82 instances of ASI’s failure to ensure Section I was properly completed or failed to properly complete Sections 2 or 3. As a result, ICE sought a penalty of $103,645 for the 110 alleged violations.

    Many of the Section 2 allegations concerned whether an “electronic” signature was utilized by ASI to sign the certification in Section 2. ASI asserted its “signature” was through the use of “word processing” that “efficiently demonstrates the attestation was read as it comes immediately below the attestation itself.” However, what ASI referred to as a signature was in actuality the typed company name and address on some of the I-9 forms.

    OCAHO found ASI’s action did not equal a signature on a paper I-9 form or an electronic I-9 form. ASI conceded it did not use electronic I-9 forms but argued the typing of its name equaled an electronic signature. OCAHO found this assertion was contrary to both law and evidence. As OCAHO stated: “The relevant statute requires a signature in the attestation in Section 2, and merely pre-printing or typing the company’s name is not the equivalent of a signature.” And without a signature, OCAHO stated “the mandated attestation is patently not complete.”

    ASI also argued it did not violate the law concerning many of the allegations because it timely presented 23 Form I-9s, which ICE denied receipt of. Each party presented affidavits, which were in conflict. ASI officials said they mailed the I-9 forms in dispute and the ICE agent denied receipt. Based on a clear dispute on the factual allegations, OCAHO stated it would set the matter for a hearing, where each party could present their witnesses. (This will be a very rare occasion for live testimony in an OCAHO case.)

    OCAHO determined ASI committed 87 of the 110 allegations. However, because 23 allegations were still in dispute, it declined to find the appropriate penalty until after a decision is rendered on the 23 allegations.
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